REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
MISCELLANEOUS CIVIL NO. E076 OF 2024
ERIC LILUNGA MUKHWAMI …………………………1 ST APPLICANT
KENYA ELECTRICITY
TRANSMISSION COMPANY LIMITED …………….2 ND APPLICANT
-VERSUS-
SAMUEL KARANJA GITHINJI …………………………….RESPONDENT
RULING
(1) Before me is the Notice of Motion dated 10/6/2025 brought under Article 50 of the Constitution of Kenya, 2010, section 1A, 1B 3 & 3A and 63 (e) of the Civil Procedure Act Cap 21 Laws of Kenya, Order 10 rule 1, order 40 rule 1, order 45 rule 7 and order 50 rule 1 of the Civil Procedure Rules, 2010.
(2) The applicants are seeking an order of review/variation of the Ruling and subsequent orders made on 30/5/2025 dismissing the applicant’s application seeking leave to appeal out of time, stay orders pending the hearing and determination of the application and intended appeal.
(3) The application is supported by the grounds on its face and the supporting affidavit sworn by Edinah Masanya on 10/6/2025.
(4) The application is opposed through the replying affidavit of the Respondent Samuel Githinji sworn on 14/7/2025.
(5) Edinah Masanya filed a further affidavit sworn on 12/9/2025 in response to the Replying Affidavit.
(6) The application was canvassed by way of written submissions – the applicant by ROM Law Advocates LLP dated 12/9/2025, the respondent dated 13/10/2025 by Teresia Muthua & Co. Advocates.
(7) I have carefully considered all the rival submissions, affidavits – and the issue is whether the application for review is merited.
(8) On 25/3/2024 the trial court in Kilungu MCCC E236/2022 delivered its Judgment. The defendants were not satisfied, and they filed an application dated 9/5/2024 seeking stay of execution of that Judgment, and leave to appeal out of time.
(9) By a Ruling dated 30/5/2025, the court dismissed the application.
(10) The applicant comes back for review – on the basis that this court placed reliance on the respondents affidavit dated 18/10/2024 in which the respondent introduced a Judgment notice dated 15/2/2024.
(11) It is contended that this further replying affidavit was filed without leave of court, was never mentioned when parties confirmed compliance on pleadings on 27/11/2024; that the further replying affidavit was filed after close of pleadings, that it was irregular, prejudicial to the applicant, and ought to have been expunged from the record. In that event the applicant was condemned unheard.
(12) In addition, there was no evidence of service of the said Judgment Notice upon the applicant.
(13) The position of the respondent is that no new and important evidence has been presented that there has been no compliance with Order 45 rule 1 – no sufficient grounds to warrant review.
(14) That no error on the face of the record has been established. That this application is an afterthought. That the applicants had the opportunity to appeal the Ruling but failed to do so.
Submissions
(15) The applicants set out 3 issues for determination:-
a. Whether there exists an error apparent on the face of the record that would necessitate review of the Ruling delivered on 30 th May, 2025?
b. Whether there would be any injustice suffered by the Respondent if the ruling is reviewed?
c. Who shall bear the costs of the suit?
(16) The applicants relies on order 45 Rule 1. Order 45 Rule 1 of the Civil Procedure Rules 2010 sets the grounds under which an application for review can be brought under as follow:
a. Discovery of new and important matter or evidence which after due diligence was not within the knowledge of the aggrieved party or produced at the time the decree was passed;
b. Mistake or error on the face of the record; and
c. Any other sufficient reason.
(17) In Nyamongo & Nyamongo Advocates vs Kogo [2001] 1EA 173 as cited in George Gichana Karanja & Anor V Mwangi Nderitu Ngatia [2019] KEHC 5103 (KLR), the Court of Appeal pronounced itself while resolving the question of what constitutes a mistake or error apparent on the face of the court record within the meaning of Order 45 Rule (1) (b) as follows:
“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record.”
(18) It is submitted that the error on the face of the record is the further replying affidavit – and the new evidence of the Judgment notice . That if the court had not been given that affidavit the decision would have been otherwise.
(19) He relies further on In re Njeru Morris [2023] KEHC 23846 (KLR) which cited in affirmation the case of Paul Mwaniki v National Hospital Insurance Fund Board of Management (2020) eKLR it was held that,
“… a review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect position of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review. The term “mistake or error evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. Put it differently an order, decision, or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. The wisdom flowing from jurisprudence on this subject is that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it.”
(20) Reliance is also placed on Teja and 5 others v Munga and 12 Others [2025] KEELC 334 (KLR) which cited in affirmation National Bank of Kenya Ltd v Ndungu Njau 1997 (eKLR ) where it was stated,
“A review may be granted whenever the Court considers that it is necessary to correct an apparent error or omission on the part of the Court. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”
(21) It is submitted that should the orders not be granted the applicants will be denied access the applicants a fair hearing. (see Article 48 and 50 of the Constitution) The court is referred to University of Nairobi v Multiscope Consultancy Engineers Limited [2020] KEHC 9696 (KLR) where was stated,
“This Court further employs the principle that a right to a hearing and therefore fair trial as enshrined in Article 50 (1) of the Constitution is a fundamental human right and the cornerstone of the rule of law. It also ties up with the right to access justice under Article 48 of the Constitution. It is the duty of this Court, therefore, to accord or ensure every person who has submitted themselves to its jurisdiction, an opportunity to ventilate their grievances…”
(22) For the Respondent – reliance is placed on order 45 Rule 1 and section 80 of the Civil Procedure Act – which provide for the basis upon which the court can conduct a review. The respondent also cites Paul Mwaniki vs National Hospital Insurance Fund Board of Management [2020]. KEHC 7414 (KLR)
“… a review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect position of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review. The term “mistake or error evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. Put it differently an order, decision, or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision
(23) The respondent relies further on the Court of Appeal in Cape Holdings Ltd (under Administration) vs Synergy Industrial Credit Ltd [2023] KECA 1497 (KLR) for the proposition that an allegation of misapprehension/misapplication of the law is not grounds for review – but for appeal.
(24) Also, Jedida Wambui Karanja & Anor vs Esther Njoki Ndirangu & Another [2020] KECA 646 (KLR ) where an attempt to re-open a matter was dismissed on the ground that review is not a proper place to sit on appeal over a decision already made.
(25) Further that the residual /inherent jurisdiction of the court to re-open its own decision is exceptionally limited – see Cecilia Situma Ndeti & Michell Kyenda Ndeti vs Matei Julius Maliti Ndeti & Others Court of Appeal No. E064/2019 where the Court of Appeal set out these exceptional circumstances
- Judgment obtained by fraud/decent.
- Judgment is a nullity.
- Judgment given under mistaken belief or consent.
- Judgment made without jurisdiction.
- Judgment rendered with a fundamental procedural irregularity depriving it of legitimacy
(26) It is submitted that this application does not fall within any of these exceptions.
(27) It is submitted that the issue of the further replying affidavit could have been sorted out earlier had the applicant exercised due diligence – because the affidavit and the notice were on record before the Ruling was delivered. That there is no error apparent on the face of the record – such an error must be obvious – it cannot be one requiring investigation, debate or reasoning or detailed argument or interpretation.
(28) It is argued that whether an affidavit was filed with or without leave, whether a judgment notice was served or not are questions of fact that require inquiry and evidence; that errors in filing/irregularities in service would not render the Ruling erroneous on its face , but matters for appeal.
(29) The respondent cites:- CKO vs JMO [2025] KECA 207 (KLR) where Court of Appeal held that dissatisfaction with a court’s evaluation of the evidence/factual conclusion is a ground for appeal not review. It is further argued that no sufficient reason is placed before court to warrant review – and the preservation of the right of appeal/desire to appeal does not satisfy this category.
(30) This court is urged to find that the applicants had an opportunity to appeal and not to misuse the review mechanism – and is referred to Niels Bruel vs Moses Wachira & 2 others (Court of Appeal No. 188 of 2012) review should be exercised sparingly and not to give a disaffected party a “2 nd bite at the cherry”.
(31) That the respondent will suffer prejudice – as execution has lawfully commenced. The court is urged to dismiss the application dated 10/6/2025, with costs and to lift the interim orders.
Analysis and Determination
(32) Having considered the application, the rival affidavits and submissions – The issue is whether the application comes within the permissible corners of Order 45 rule 1 of the Civil Procedure Code and section 80 of the Civil Procedure Act?
(33) I have considered the law, the authorities cited on the limits of the jurisdiction of review.
(34) The central issue is a further replying affidavit introducing a piece of evidence relied on by the court – which affidavit was filed without leave – the other side is of the view that due diligence would have discovered this, would have raised the issue before the Ruling
(35) To flip the issue – should the respondent benefit from a procedural irregularity?.
(36) For this application – the real issue, appears to be the fact that there was an affidavit filed without leave – and whose contents went to the determination of the application without the applicant having the opportunity to respond. I note that the respondent does not deny the filing of this affidavit – but puts the blame on the applicant for not noticing it and raising issue before the Ruling was delivered.
(37) While this argument is sound – I have trouble with it – in that the respondent ought to have known not to file the affidavit without leave, and not to have served the same to draw it to the attention of the applicant.
(38) It is my view that the further replying affidavit falls within the exception of “fundamental procedural irregularity” because the content of that affidavit was relied on by the court to arrive at its decision. For that reason, I find that this application is merited –
(39) In the circumstances the Ruling of 30/5/2025 is set aside – the parties to appear before the Judge for directions in the application dated 9/5/2024.
Costs in the cause.
RULING dated, signed and delivered virtually this 8 th May 2026
Mumbua T Matheka
Judge
CA Chrispol
Ms. Nzuki for the applicant
Mrs. Ngugi for the Respondent
RULING HC MISC. E076 of 2024 Page 2 of 2
IN THE HIGH COURT OF KENYA AT MAKUENI
MISCELLANEOUS CIVIL NO. E076 OF 2024
ERIC LILUNGA MUKHWAMI …………………………1 ST APPLICANT
KENYA ELECTRICITY
TRANSMISSION COMPANY LIMITED …………….2 ND APPLICANT
-VERSUS-
SAMUEL KARANJA GITHINJI …………………………….RESPONDENT
RULING
(1) Before me is the Notice of Motion dated 10/6/2025 brought under Article 50 of the Constitution of Kenya, 2010, section 1A, 1B 3 & 3A and 63 (e) of the Civil Procedure Act Cap 21 Laws of Kenya, Order 10 rule 1, order 40 rule 1, order 45 rule 7 and order 50 rule 1 of the Civil Procedure Rules, 2010.
(2) The applicants are seeking an order of review/variation of the Ruling and subsequent orders made on 30/5/2025 dismissing the applicant’s application seeking leave to appeal out of time, stay orders pending the hearing and determination of the application and intended appeal.
(3) The application is supported by the grounds on its face and the supporting affidavit sworn by Edinah Masanya on 10/6/2025.
(4) The application is opposed through the replying affidavit of the Respondent Samuel Githinji sworn on 14/7/2025.
(5) Edinah Masanya filed a further affidavit sworn on 12/9/2025 in response to the Replying Affidavit.
(6) The application was canvassed by way of written submissions – the applicant by ROM Law Advocates LLP dated 12/9/2025, the respondent dated 13/10/2025 by Teresia Muthua & Co. Advocates.
(7) I have carefully considered all the rival submissions, affidavits – and the issue is whether the application for review is merited.
(8) On 25/3/2024 the trial court in Kilungu MCCC E236/2022 delivered its Judgment. The defendants were not satisfied, and they filed an application dated 9/5/2024 seeking stay of execution of that Judgment, and leave to appeal out of time.
(9) By a Ruling dated 30/5/2025, the court dismissed the application.
(10) The applicant comes back for review – on the basis that this court placed reliance on the respondents affidavit dated 18/10/2024 in which the respondent introduced a Judgment notice dated 15/2/2024.
(11) It is contended that this further replying affidavit was filed without leave of court, was never mentioned when parties confirmed compliance on pleadings on 27/11/2024; that the further replying affidavit was filed after close of pleadings, that it was irregular, prejudicial to the applicant, and ought to have been expunged from the record. In that event the applicant was condemned unheard.
(12) In addition, there was no evidence of service of the said Judgment Notice upon the applicant.
(13) The position of the respondent is that no new and important evidence has been presented that there has been no compliance with Order 45 rule 1 – no sufficient grounds to warrant review.
(14) That no error on the face of the record has been established. That this application is an afterthought. That the applicants had the opportunity to appeal the Ruling but failed to do so.
Submissions
(15) The applicants set out 3 issues for determination:-
a. Whether there exists an error apparent on the face of the record that would necessitate review of the Ruling delivered on 30 th May, 2025?
b. Whether there would be any injustice suffered by the Respondent if the ruling is reviewed?
c. Who shall bear the costs of the suit?
(16) The applicants relies on order 45 Rule 1. Order 45 Rule 1 of the Civil Procedure Rules 2010 sets the grounds under which an application for review can be brought under as follow:
a. Discovery of new and important matter or evidence which after due diligence was not within the knowledge of the aggrieved party or produced at the time the decree was passed;
b. Mistake or error on the face of the record; and
c. Any other sufficient reason.
(17) In Nyamongo & Nyamongo Advocates vs Kogo [2001] 1EA 173 as cited in George Gichana Karanja & Anor V Mwangi Nderitu Ngatia [2019] KEHC 5103 (KLR), the Court of Appeal pronounced itself while resolving the question of what constitutes a mistake or error apparent on the face of the court record within the meaning of Order 45 Rule (1) (b) as follows:
“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record.”
(18) It is submitted that the error on the face of the record is the further replying affidavit – and the new evidence of the Judgment notice . That if the court had not been given that affidavit the decision would have been otherwise.
(19) He relies further on In re Njeru Morris [2023] KEHC 23846 (KLR) which cited in affirmation the case of Paul Mwaniki v National Hospital Insurance Fund Board of Management (2020) eKLR it was held that,
“… a review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect position of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review. The term “mistake or error evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. Put it differently an order, decision, or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. The wisdom flowing from jurisprudence on this subject is that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it.”
(20) Reliance is also placed on Teja and 5 others v Munga and 12 Others [2025] KEELC 334 (KLR) which cited in affirmation National Bank of Kenya Ltd v Ndungu Njau 1997 (eKLR ) where it was stated,
“A review may be granted whenever the Court considers that it is necessary to correct an apparent error or omission on the part of the Court. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”
(21) It is submitted that should the orders not be granted the applicants will be denied access the applicants a fair hearing. (see Article 48 and 50 of the Constitution) The court is referred to University of Nairobi v Multiscope Consultancy Engineers Limited [2020] KEHC 9696 (KLR) where was stated,
“This Court further employs the principle that a right to a hearing and therefore fair trial as enshrined in Article 50 (1) of the Constitution is a fundamental human right and the cornerstone of the rule of law. It also ties up with the right to access justice under Article 48 of the Constitution. It is the duty of this Court, therefore, to accord or ensure every person who has submitted themselves to its jurisdiction, an opportunity to ventilate their grievances…”
(22) For the Respondent – reliance is placed on order 45 Rule 1 and section 80 of the Civil Procedure Act – which provide for the basis upon which the court can conduct a review. The respondent also cites Paul Mwaniki vs National Hospital Insurance Fund Board of Management [2020]. KEHC 7414 (KLR)
“… a review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect position of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review. The term “mistake or error evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. Put it differently an order, decision, or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision
(23) The respondent relies further on the Court of Appeal in Cape Holdings Ltd (under Administration) vs Synergy Industrial Credit Ltd [2023] KECA 1497 (KLR) for the proposition that an allegation of misapprehension/misapplication of the law is not grounds for review – but for appeal.
(24) Also, Jedida Wambui Karanja & Anor vs Esther Njoki Ndirangu & Another [2020] KECA 646 (KLR ) where an attempt to re-open a matter was dismissed on the ground that review is not a proper place to sit on appeal over a decision already made.
(25) Further that the residual /inherent jurisdiction of the court to re-open its own decision is exceptionally limited – see Cecilia Situma Ndeti & Michell Kyenda Ndeti vs Matei Julius Maliti Ndeti & Others Court of Appeal No. E064/2019 where the Court of Appeal set out these exceptional circumstances
- Judgment obtained by fraud/decent.
- Judgment is a nullity.
- Judgment given under mistaken belief or consent.
- Judgment made without jurisdiction.
- Judgment rendered with a fundamental procedural irregularity depriving it of legitimacy
(26) It is submitted that this application does not fall within any of these exceptions.
(27) It is submitted that the issue of the further replying affidavit could have been sorted out earlier had the applicant exercised due diligence – because the affidavit and the notice were on record before the Ruling was delivered. That there is no error apparent on the face of the record – such an error must be obvious – it cannot be one requiring investigation, debate or reasoning or detailed argument or interpretation.
(28) It is argued that whether an affidavit was filed with or without leave, whether a judgment notice was served or not are questions of fact that require inquiry and evidence; that errors in filing/irregularities in service would not render the Ruling erroneous on its face , but matters for appeal.
(29) The respondent cites:- CKO vs JMO [2025] KECA 207 (KLR) where Court of Appeal held that dissatisfaction with a court’s evaluation of the evidence/factual conclusion is a ground for appeal not review. It is further argued that no sufficient reason is placed before court to warrant review – and the preservation of the right of appeal/desire to appeal does not satisfy this category.
(30) This court is urged to find that the applicants had an opportunity to appeal and not to misuse the review mechanism – and is referred to Niels Bruel vs Moses Wachira & 2 others (Court of Appeal No. 188 of 2012) review should be exercised sparingly and not to give a disaffected party a “2 nd bite at the cherry”.
(31) That the respondent will suffer prejudice – as execution has lawfully commenced. The court is urged to dismiss the application dated 10/6/2025, with costs and to lift the interim orders.
Analysis and Determination
(32) Having considered the application, the rival affidavits and submissions – The issue is whether the application comes within the permissible corners of Order 45 rule 1 of the Civil Procedure Code and section 80 of the Civil Procedure Act?
(33) I have considered the law, the authorities cited on the limits of the jurisdiction of review.
(34) The central issue is a further replying affidavit introducing a piece of evidence relied on by the court – which affidavit was filed without leave – the other side is of the view that due diligence would have discovered this, would have raised the issue before the Ruling
(35) To flip the issue – should the respondent benefit from a procedural irregularity?.
(36) For this application – the real issue, appears to be the fact that there was an affidavit filed without leave – and whose contents went to the determination of the application without the applicant having the opportunity to respond. I note that the respondent does not deny the filing of this affidavit – but puts the blame on the applicant for not noticing it and raising issue before the Ruling was delivered.
(37) While this argument is sound – I have trouble with it – in that the respondent ought to have known not to file the affidavit without leave, and not to have served the same to draw it to the attention of the applicant.
(38) It is my view that the further replying affidavit falls within the exception of “fundamental procedural irregularity” because the content of that affidavit was relied on by the court to arrive at its decision. For that reason, I find that this application is merited –
(39) In the circumstances the Ruling of 30/5/2025 is set aside – the parties to appear before the Judge for directions in the application dated 9/5/2024.
Costs in the cause.
RULING dated, signed and delivered virtually this 8 th May 2026
Mumbua T Matheka
Judge
CA Chrispol
Ms. Nzuki for the applicant
Mrs. Ngugi for the Respondent
RULING HC MISC. E076 of 2024 Page 2 of 2